No. 02-176
IN THE SUPREME COURT OF THE STATE OF MONTANA
2004 MT 66
MICHAEL ELLENBURG,
Petitioner and Appellant,
v.
DOUG CHASE, STATE OF MONTANA, et al.,
Respondents and Respondents.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula, Cause No. DV 2001-573
The Honorable John W. Larson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Michael Ellenburg, pro se, Deer Lodge, Montana
For Respondents:
Hon. Mike McGrath, Montana Attorney General, Pamela P. Collins,
Assistant Attorney General, Helena, Montana; Fred Van Valkenburg,
Missoula County Attorney, Missoula, Montana
Submitted on Briefs: August 29, 2002
Decided: March 23, 2004
Filed:
__________________________________________
Clerk
Justice James C. Nelson delivered the Opinion of the Court.
¶1 Michael Ellenburg, acting pro se, appeals an order of the District Court for the Fourth
Judicial District, Missoula County, denying his petition for postconviction relief. We affirm.
¶2 The issue on appeal, as framed by the State, is: Whether Ellenburg’s petition for
postconviction relief was properly denied.
Factual and Procedural Background
¶3 On October 14, 1997, Ellenburg, a licensed insurance agent, was charged by
Information with three counts of felony theft, two counts of misdemeanor elder abuse and
one count of felony forgery, all stemming from Ellenburg’s misuse of an elderly client’s
funds. The facts surrounding the charges are set forth in State v. Ellenburg, 2000 MT 232,
301 Mont. 289, 8 P.3d 801.
¶4 At his arraignment on October 31, 1997, Ellenburg pleaded not guilty to the charges.
On November 17, 1998, Ellenburg filed a motion to dismiss the charges under Brady v.
Maryland (1963), 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, based on a search of his
residence in June 1997, resulting in the seizure of his business records, and for an alleged
violation of his right to a speedy trial. After an evidentiary hearing on January 28, 1999, the
District Court denied Ellenburg’s motion.
¶5 Thereafter, Ellenburg moved to withdraw his not-guilty pleas and, pursuant to a plea
agreement, Ellenburg pleaded guilty to two counts of felony theft and one count of felony
forgery, reserving the right to appeal the District Court’s denial of his motion to dismiss. In
addition, Ellenburg waived the preparation of a pre-sentence investigative report and agreed
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to pay restitution.
¶6 The District Court sentenced Ellenburg to ten years at Montana State Prison on each
of the felony theft charges and twenty years on the charge of felony forgery. The District
Court ordered that the sentences run consecutively, but the court suspended the sentences
for felony theft and five years of the sentence for felony forgery with conditions. The court
also ordered that Ellenburg pay restitution in the amount of $136,635.
¶7 Ellenburg appealed the denial of his motion to dismiss the charges, but we affirmed
the judgment of the District Court in August 2000. Ellenburg, ¶¶ 44, 57.
¶8 On July 25, 2001, Ellenburg filed a petition for postconviction relief in the District
Court along with a supporting brief. The court denied the petition on March 4, 2002,
concluding that the only claim raised by Ellenburg that was not precluded by a procedural
bar or his guilty plea was Ellenburg’s claim of ineffective assistance of counsel for counsel’s
failure to introduce Ellenburg’s medical and psychological records to mitigate his sentence.
As to that claim, the court concluded that Ellenburg received exactly the sentence he
bargained for, therefore, Ellenburg was not prejudiced by counsel’s failure to introduce his
records.
¶9 Ellenburg now appeals the District Court’s denial of his petition for postconviction
relief .
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Standard of Review
¶10 We review a district court’s denial of a petition for postconviction relief to determine
whether its findings are clearly erroneous and whether it correctly interpreted the law.
Dawson v. State, 2000 MT 219, ¶ 18, 301 Mont. 135, ¶ 18, 10 P.3d 49, ¶ 18, cert. denied,
532 U.S. 928, 121 S.Ct. 1372, 149 L.Ed.2d 299 (2001).
Discussion
¶11 Relying on Rule 12(b)(6), M.R.Civ.P., and various cases interpreting that Rule,
Ellenburg asserts on appeal that the standard for dismissing a postconviction petition without
a hearing is identical to the standard for dismissing a civil complaint based on the pleadings
alone. Thus, he asserts that in considering his motion to dismiss, we must construe his
petition in the light most favorable to him and that all allegations of fact contained in the
petition must be taken as true. However, in its brief on appeal, the State points out that
Ellenburg’s assertions are incorrect because Rule 12(b)(6) is inconsistent with the specific
pleading and proof provisions of the postconviction petition statutes.
¶12 The Rules of Civil Procedure apply to postconviction relief petitions only if they are
consistent with the specific provisions of the postconviction statutes. Section 46-21-
201(1)(c), MCA. Unlike civil complaints, the postconviction statutes are demanding in their
pleading requirements. Section 46-21-104, MCA, sets forth what a postconviction petition
must contain:
(1) The petition for postconviction relief must:
(a) identify the proceeding in which the petitioner was convicted, give
the date of the rendition of the final judgment complained of, and clearly set
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forth the alleged violation or violations;
....
(c) identify all facts supporting the grounds for relief set forth in the
petition and have attached affidavits, records, or other evidence establishing
the existence of those facts. [Emphasis added.]
And, § 46-21-104(2), MCA, provides that a petition must be accompanied by a supporting
memorandum, including appropriate arguments and citations and discussion of authorities.
Additionally, a postconviction petitioner has the burden of proving by a preponderance of
the evidence that he or she is entitled to relief. State v. Peck (1993), 263 Mont. 1, 3-4, 865
P.2d 304, 305. Thus, contrary to Ellenburg’s assertions, because the testing of the
sufficiency of postconviction claims is directed by the more specific provisions of the
postconviction statutes, the traditional civil law standards for testing the sufficiency of claims
is unavailable to postconviction petitioners.
¶13 Whether Ellenburg’s petition for postconviction relief was properly denied.
¶14 Ellenburg raises several issues on appeal, some of which he raised in his petition for
postconviction relief in the District Court and some of which he did not. This Court has
stated on numerous occasions that it will not review issues that were not preserved for appeal
in the district court. State v. Schmalz, 1998 MT 210, ¶¶ 11-13, 290 Mont. 420, ¶¶ 11-13, 964
P.2d 763, ¶¶ 11-13; State v. Spotted Blanket, 1998 MT 59, ¶ 13, 288 Mont. 126, ¶ 13, 955
P.2d 1347, ¶ 13. As the State notes in its brief on appeal, the rule is the same in the civil
context. Rule 2(a), M.R.App.P., provides that, in a civil case, the Court may review on
appeal any decision of a district court that has been objected to within the meaning of
Rule 46, M.R.Civ.P. (a party must make known to the trial court, at the time the ruling is
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made or sought, the party’s objection to the action and the grounds therefor).
¶15 Ellenburg claims that counsel failed to advise him about his right to appeal and failed
to take the necessary steps to perfect the appeal. Because Ellenburg did not raise this issue
in the District Court, he is barred from raising it on appeal. Schmalz, ¶¶ 11-13; Spotted
Blanket, ¶ 13. Nevertheless, Ellenburg was not prejudiced by counsel’s alleged failure in this
regard because Ellenburg did, in fact, appeal his conviction. See State v. Ellenburg, 2000
MT 232, 301 Mont. 289, 8 P.3d 801.
¶16 Ellenburg also claims that the State misrepresented evidence and introduced false and
misleading evidence at sentencing. Once again, because Ellenburg failed to raise this issue
in the District Court, he is barred from raising it on appeal. Schmalz, ¶¶ 11-13; Spotted
Blanket, ¶ 13. Even so, a petition for postconviction relief must be based on more than mere
conclusory allegations. It must “identify all facts supporting the grounds for relief set forth
in the petition and have attached affidavits, records, or other evidence establishing the
existence of those facts.” State v. Wright, 2001 MT 282, ¶ 9, 307 Mont. 349, ¶ 9, 42 P.3d
753, ¶ 9 (quoting § 46-21-104(1)(c), MCA). Here, Ellenburg fails to state what evidence
was misrepresented or what the alleged false and misleading evidence was. Hence, even if
Ellenburg had raised this issue in the District Court, he has waived his right to have this
Court consider the issue because he failed to provide any evidentiary support for his
allegations. Wright, ¶ 9.
¶17 Ellenburg further claims that the State breached the plea agreement, however,
Ellenburg fails to indicate in what manner the plea agreement was breached. Once again,
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Ellenburg did not raise this issue in the District Court, but even if he had, he waived his right
to have this Court consider the issue because he failed to provide any evidentiary support for
his allegations. Wright, ¶ 9.
¶18 In addition, Ellenburg claims that trial counsel provided ineffective assistance because
counsel failed to investigate and failed to present mitigating evidence. This claim is different
than the ineffective assistance of counsel claim Ellenburg presented in the District Court.
There, Ellenburg contended that counsel failed to introduce Ellenburg’s medical and
psychological records in mitigation. Here, Ellenburg contends that trial counsel failed “to
adequately investigate and present mitigation evidence on his behalf” implying that some
other mitigating evidence would have come to light had counsel adequately investigated.
This Court has repeatedly held that a party may not change its theory on appeal from the one
advanced in the district court. State v. Kober, 1999 MT 264, ¶ 11, 296 Mont. 425, ¶ 11, 989
P.2d 399, ¶ 11. Thus, we decline to review this argument further.
¶19 Even though several of the issues that Ellenburg now raises on appeal were raised in
his postconviction petition in the District Court, those issues are also procedurally barred
because Ellenburg either raised them on direct appeal or reasonably could have raised them
on direct appeal.
(2) When a petitioner has been afforded the opportunity for a direct
appeal of the petitioner’s conviction, grounds for relief that were or could
reasonably have been raised on direct appeal may not be raised, considered,
or decided in a proceeding brought under this chapter. . . .
(3) For purposes of this section, “grounds for relief” includes all legal
and factual issues that were or could have been raised in support of the
petitioner’s claim for relief.
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Section 46-21-105(2) and (3), MCA.
¶20 One such issue is Ellenburg’s claim that his federal and state constitutional rights
were violated when “thousands” of his records and files were seized without his consent or
an inventory. When Ellenburg pleaded guilty, he reserved the right to appeal the District
Court’s denial of his motion to dismiss the charges against him on the grounds that the
search of his business records was illegal and that allegedly exculpatory evidence was seized.
On direct appeal, Ellenburg limited his claim to certain seized documents, thus we addressed
the loss of only those documents. Ellenburg, ¶¶ 53-57. Consequently, Ellenburg’s claim
that his rights were violated as to those documents is procedurally barred under § 46-21-
105(2), MCA, because that claim was raised on direct appeal.
¶21 Additionally, Ellenburg’s claims as to any records or files other than those mentioned
above, are procedurally barred because those claims were not preserved for appeal under
§ 46-12-204(3), MCA. A guilty plea that is voluntary and intelligent constitutes a waiver
of nonjurisdictional defects and defenses. State v. Niederklopfer, 2000 MT 187, ¶ 13, 300
Mont. 397, ¶ 13, 6 P.3d 448, ¶ 13 (citations omitted).
When a criminal defendant has solemnly admitted in open court that he is in
fact guilty of the offense with which he is charged, he may not thereafter raise
independent claims relating to the deprivation of constitutional rights that
occurred prior to the entry of the guilty plea. He may only attack the
voluntary and intelligent character of the guilty plea.
Niederklopfer, ¶ 13 (quoting Tollett v. Henderson (1973), 411 U.S. 258, 267, 93 S.Ct. 1602,
1608, 36 L.Ed.2d 235).
¶22 Ellenburg also claims that his right to a speedy trial was violated because 616 days
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elapsed from the date of his arrest on June 13, 1997, to the date of his conviction on
March 2, 1999. On direct appeal, Ellenburg argued that his right to a speedy trial was
violated because 493 days elapsed between the date the Information was filed and the date
of his trial. Because, this Court has already addressed Ellenburg’s speedy trial claim,
Ellenburg, ¶¶ 13-44, this claim is procedurally barred under § 46-21-105(2), MCA.
¶23 Similarly, all of Ellenburg’s other claims regarding violations of his rights under the
Fourth, Fifth, and Sixth Amendments to the United States Constitution and Article II,
sections 12, 17, 24 and 25 of the Montana Constitution, are procedurally barred under either
§ 46-12-204(3), MCA, because they were not preserved for appeal, or § 46-21-105(2), MCA,
because they were not raised on appeal when they reasonably could have been.
¶24 In addition, Ellenburg claims that he was unlawfully sentenced to pay restitution in
the amount of $136,635 because his financial resources and future ability to pay restitution
were not addressed or documented in a pre-sentence investigative report or at sentencing in
violation of § 46-18-242(1)(a), MCA. Ellenburg is procedurally barred under § 46-21-
105(2), MCA, from raising this claim in a postconviction proceeding because he reasonably
could have raised it on direct appeal, but failed to do so. Moreover, Ellenburg cannot show
that he was prejudiced by the order to pay restitution because in his plea agreement,
Ellenburg agreed to waive the pre-sentence investigative report and to pay the full amount
of restitution. After receiving the benefit of the plea bargain, Ellenburg cannot now claim
error. State v. Harris, 1999 MT 115, ¶ 32, 294 Mont. 397, ¶ 32, 983 P.2d 881, ¶ 32 (“We
will not put a district court in error for an action in which the appealing party acquiesced or
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actively participated.”).
¶25 Ellenburg also claims ineffective assistance of counsel for counsel’s failure to object
when the District Court attributed 98 days of delay to Ellenburg thereby depriving Ellenburg
of the opportunity to demonstrate a violation of his right to a speedy trial. The District Court
held a trial-scheduling conference on November 12, 1998. At that time, defense counsel
informed the court that there would be several defense pretrial motions. Defense counsel
proposed a briefing schedule and an evidentiary hearing. Based on that information, the
District Court set the date of trial as February 19, 1999, and attributed the 98 days of delay
to Ellenburg.
¶26 Before reaching the merits of an ineffective assistance of counsel claim in a
postconviction relief proceeding, we must determine whether such a claim is properly before
this Court or whether the claim is procedurally barred. Such a claim could be barred by §
46-21-105(2), MCA, if it reasonably could have been raised on direct appeal. Wright, ¶ 12.
In deciding whether an ineffective assistance of counsel claim could have been raised on
direct appeal, we must determine whether the allegation is based on facts of record. “In
distinguishing on-record and off-record actions of counsel, the definitive question is ‘why’
counsel acted or failed to act.” State v. Fields, 2002 MT 84, ¶ 32, 309 Mont. 300, ¶ 32, 46
P.3d 612, ¶ 32. In the instant case, why Ellenburg’s counsel acted or failed to act is fully
explained in the record. Counsel requested the 98-day delay so that he could prepare pretrial
motions and so that he could prepare for an evidentiary hearing on Ellenburg’s behalf.
Because this claim is based on facts of record, it could reasonably have been raised on direct
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appeal, but, because it was not, it is procedurally barred in this postconviction proceeding.
See Hagen v. State, 1999 MT 8, ¶ 18, 293 Mont. 60, ¶ 18, 973 P.2d 233, ¶ 18.
¶27 Ellenburg further claims ineffective assistance of counsel for counsel’s failure to
introduce Ellenburg’s medical and psychological records. However, this claim too must fail
because Ellenburg cannot demonstrate that counsel’s assistance was ineffective or that he
was prejudiced by the alleged ineffective assistance. A petition for postconviction relief
must identify all facts supporting the grounds for relief set forth in the petition and all
affidavits, records, or other evidence establishing the existence of those facts must be
attached to the petition. Section 46-21-104(1)(c), MCA; Wright, ¶ 9. Ellenburg failed to
produce his medical and psychological records or even specify what is contained in those
records that might have mitigated his sentence. Moreover, Ellenburg was sentenced to
exactly the same sentence he bargained for. By agreeing to the sentence he received,
Ellenburg has waived any right to contest that sentence in a postconviction proceeding.
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¶28 Accordingly, we hold that the District Court did not err in denying Ellenburg’s
petition for postconviction relief.
¶29 Affirmed.
/S/ JAMES C. NELSON
We Concur:
/S/ KARLA M. GRAY
/S/ JIM RICE
/S/ PATRICIA O. COTTER
/S/ JIM REGNIER
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